Dwarkabai Ganesh Mukkawar vs Harachand Chintu Sawji Gour (Since … on 24 June 1993

Bombay High Court
Dwarkabai Ganesh Mukkawar vs Harachand Chintu Sawji Gour (Since … on 24 June, 1993
Equivalent citations: (1993)95BOMLR489
JUDGMENT

N.P. Chapalgaonker, J.

1. This revision application raises an interesting question about the limitation for redemption of mortgaged property.

2. One Harachand Gour – original respondent in this revision application, was the owner of House No. 5-2-148 (old No. 1058) situated at Udgir. He mortgaged this property with one Bhanudas s/o Venkati Kautikwar on 12 Isfindar 1359 Fasli (corresponding to the year 1949-50 A.D.) by a registered mortgage deed for a sum of Rs. 4300/-. Osmania currency (approximately Rs. 3700/- Indian currency). Mortgage was to be redeemed after the expiry of 3 years from the date of the registration of the mortgage deed and the possession of the property mortgaged was to be enjoyed by mortgagee in lieu of the interest on the money advanced.

3. Mortgagee Bhanudas Venkati expired sometime in the year 1978 and is survived by his mother Subhadrabai and a daughter Dwarka. Mortgagor filed an application under Section 83 of the Transfer of Property Act and deposited mortgage amount in the Court of Civil Judge, Junior Division, Udgir along with the application. Notice was issued to the heirs of mortgagee and it was contended by them that the suit for redemption of mortgage is barred by the Law of Limitation and, therefore, an application under Section 83 cannot be granted. However, learned trial Judge was pleased to allow the application vide his Order dated 21.1.1987 which has been challenged in this revision application.

4. There is no dispute between the parties that the mortgage was for a period of 3 years and redemption was allowed thereafter. Therefore, had the suit been filed for the redemption of the said mortgage under the old Limitation Act, Article 148 of the Act of 1908 would have become applicable. The limitation prescribed under that provision for the redemption of mortgage of immovable property or to recover possession of the said property was 60 years. By virtue of the provisions contained in Article 61 of the Limitation Act, 1963, the limitation has been curtailed and a shorter period of 30 years is prescribed.

5. Shri P. R. Deshmukh, learned Counsel for the petitioner, submitted that if the suit for redemption and possession of the suit property is not within limitation as prescribed by Article 61 read with the provisions of Section 30 of the Limitation Act, 1963, an application under Section 83 of the Transfer of Property Act is not maintainable, Shri C. G. Solshe, learned Counsel for the respondent, has no dispute with this submission of Shri Deshmukh but contends that the starting point of limitation in this peculiar case would be the commencement of the Act of 1963 i.e. 1st January, 1964 and not the event specified in third column of Article 61 of the Limitation Act of 1963.

6. The limitation prescribed to redeem mortgage or recover possession of immovable property mortgaged by the Act of 1963 is shorter than the limitation prescribed by the Act of 1908. Legislature has made a special provision to take care of certain eventualities which may occur because of the shortening of this period and hardships that may be caused to affected persons. Section 30 of the Limitation Act, 1963, so far as is relevant for the purpose of this revision application is quoted below-

30. Notwithstanding anything contained in this Act,-

(a) any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, may be instituted within a period of (seven years) next after the commencement of this Act or within the period prescribed for such suit by the Indian Limitation Act, 1908, whichever period expires earlier:
(Provided that if in respect of any such suit, the said period of seven years expires earlier than the period of limitation prescribed therefor under the Indian Limitation Act, 1908 and the said period of seven years together with so much of the period of limitation in respect of such suit under the Indian Limitation Act, 1908, as has already expired before the commencement of this Act is shorter than the period prescribed for such suit under this Act, then, the suit may be instituted within the period of limitation prescribed therefor under this Act;) Clause (a) lays down that if the period of limitation is shorter by new Act, suit may be instituted within a period of 7 years next after the commencement of this Act or within the period prescribed for such suit by the Indian Limitation Act, 1908 whichever period expires earlier. Proviso to this clause deals with the cases wherein the period of 7 years expires earlier than the period of limitation prescribed therefor under the Act of 1908. It was laid down that 7 years together with so much of the period of limitation in respect of such suit under the old Act as has already expired before the commencement of the new Act taken together is shorter than the period prescribed for such suit under the new Act then the suit may be instituted within the period of limitation prescribed under the new Act. The purpose of the proviso is obvious. The provisions made by clause (a) may, sometimes, instead of helping the plaintiffs to overcome the difficulty resulting from shortening of the period of limitation get period shorter than the prescribed by new Act and bar the suit because of the very provision. For instance, if a mortgage was executed in the year 1943 under the old Act, redemption suit could have been filed before the year 2003, The new Limitation Act prescribed a period of 30 years. Therefore, after the commencement of new Act, the redemption suit could have been filed before 1973. But clause (a) of Section 30, if read in exclusion of proviso, would prescribe that the suit could be filed only before 1971. Whereas plaintiff would have been entitled to file suit before 1973 (30 years from cause of action) but Section 30(a) would result in curtailment of this period to 1971. Transitory provisions contained in Section 30 would have then defeated the very object of making it. Therefore, the proviso was inserted by Act No. 10 of 1969 to take care of such an eventuality. Let us apply this proviso to the facts of the case at hand. The date of the mortgage is 12 Isfindar 1359 Fasli (corresponding to the year 1950 A.D.) and the period of mortgage was 3 years and, therefore, the right to redeem mortgage accrued sometime in the year 1953. Out of the 60 years’ limitation prescribed under the old Act, 10 years had already expired before the commencement of the new Act. This period plus 7 years making together 17 years is shorter than the limitation prescribed under the new Act, Therefore, plaintiff is entitled to take the benefit of the limitation prescribed under the new Act and would be entitled to file a suit before 1983 and the present application filed under Section 83 of the Transfer of Property Act on 7 .11.1985 is beyond the period of limitation of suit prescribed for redemption of mortgage and, therefore, not maintainable.
7. According to Shri Solshe. learned Counsel for the respondent, the starting point for the calculation of the limitation under proviso to Section 30(a) would be the date on which the new Limitation Act has come into force i.e. 1.1.1964. Shri Solshe submits that since 7 years period is to be calculated from the date of the commencement of the Act, the limitation under this proviso being an exception to the general rule, will have to be calculated from that date alone. According to him, 10 years (expired period of limitation under the old Act) plus 7 years under Section 30(1)(b) = 17 years, being shorter than the limitation prescribed under the new Act, would be available to the respondent for filing the suit and the starting point for this limitation would be 1.1.1964. Therefore, suit filed within 30 years from the said date i.e. before 1.1.1994, would have been within limitation. Hence, the application under Section 83 filed by the respondent was also within limitation.
8. The starting point of limitation either under old Act or the new Act for redemption of the mortgage and for seeking possession of the mortgage property was the same i.e. when the right to redeem mortgage and get possession accrues. The whole scheme of the Limitation Act does not contemplate the calculation of the limitation on the basis of any other starting point of limitation other than mentioned in column 3 of the Article applicable, Shri Solshe’s argument is based on the fallacy that Section 30 prescribes starting point of limitation different than the one prescribed in the relevant Article. Section 730 does not carve out any exception wherein the starting point of limitation would be different from the one mentioned in the third column of that Article. It merely prescribes an extension of limitation in certain circumstances. Limitation which commenced to run from event mentioned in column 3 is only extended by this provision.
9. Shri Solshe further relied on clause (j) of Section 2 of the Limitation Act, 1963 and submitted that “period of limitation” and “prescribed period” are different things. Period of limitation is the limitation prescribed by the Act and prescribed period is the computation of the said limitation in the light of various provisions of the Act. Therefore, the limitation can be extended in certain circumstances and if the remedy is sought within that period, it would be well within the period of limitation. This difference between the period of limitation and the prescribed period pressed in service by Shri Solshe will not help the cause of the respondent. Any computation of limitation, as provided by Section 30 or any other provision of the Limitation Act, would not contemplate 1.1.1964 as the starting point of limitation. Therefore, the contention raised by Shri Solshe will have to be repelled. .
10. Civil Revision Application stands allowed. The order dated 21.1.1987 passed by the Civil Judge, Junior Division, Udgir in Misc. Application No. 30 of 1985 is hereby quashed. The application filed by mortgagor under Section 30 of the Transfer of Property Act is hereby dismissed. Rule made absolute in the above terms. No order as to the costs.